Books and borders.

Chief Justice Beverly McLaughlin of the Supreme Court has described freedom of expression as our most fundamental right. The Charter of Rights and Freedoms stipulates "Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication" The Chief Justice also observed that "It makes possible our liberty, our creativity and our democracy. It does this by protecting not only `good' and popular expression, but also unpopular or even offensive expression."

As reassuring as that might sound, keep in mind that some 4,000 Canada Customs officers have the power to seize books being imported into Canada and they use the power liberally. In a recent four year period, 35,000 book and video shipments were prohibited by Customs from entry into this country. These officers have no specialized knowledge of art or literature. They receive only minimal training with regard to obscenity determinations. That is not very comforting since the current definition of obscenity in the Criminal Code and in customs legislation bedevils judges, lawyers and police.

Clearly the aim of the customs officials has not been very accurate. The seizures included materials such as the photography exhibit of Vancouver artists who won international acclaim and work by Jane Rule, author of the 1978 best Canadian novel. The usual procedure is for a Customs official to thumb through the pages of any given book. As soon as the official finds any three passages that match a list of forbidden words and ideas described as obscene by Memorandum D-9-1-1, then the book is deemed obscene and prohibited.

The Supreme Court of Canada has recently announced its decision in the long standing case involving the Little Sisters Bookstore and Art Emporium. This is a Vancouver bookstore that caters to the gay and lesbian community. About 80% of the stock is imported from the USA. For the last 15 years, much of this material has been seized at the border. The trial judge found that Customs officials had wrongly delayed, confiscated, destroyed, damaged, prohibited or misclassified materials imported by the bookstore as a consequence of the targeting of the store. Books were often tied up at the border for months after they were paid for. Many of them were sent back to sender. A number of suppliers concluded this was just too much trouble and refused to make further shipments.

In a split decision, 6 of the 9 Supreme Court Justices acknowledged the injury flowing from this heavy-handed censorship by Canada Customs, but nonetheless upheld the Customs Act and its seizure powers. They ordered a tweaking of the law but affirmed the validity of most of the Customs Act. The Supreme Court was very critical of conduct of Canada Customs and highlighted certain illegal practices of the officials. The majority on the court found that the rights of the bookstore operators clearly had been violated but this resulted from the application of the legislation not the legislation itself. The Court was not persuaded by the lawyer from the Canadian AIDS Society who observed as follows: "What the customs is saying to us in effect is, having been in your henhouse for almost 20 years, this fox has now become a vegetarian and should remain in charge with no further restrictions. Well, speaking for the chickens, we are not very reassured."

The definition of obscenity in the Criminal Code includes "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subject, namely, crime, horror, cruelty, and violence".

Police historically made their assessment based on the degree of explicitness. The vice officers or customs officials would thumb through a book looking for certain words or phrases. They would fast forward videotapes without listening to the soundtrack. The Crown had to establish that the material didn't exceed the community standard of tolerance. In reality it is very difficult to reconcile dozens of court decisions. It is also arguable that the exploitation of sex in the mainstream media is far more problematic than the usual targets of police or customs officials. The cynic might describe the definition as an attempt to dress up a value judgment of the judge and then pass it off as an objective test.

That changed radically when the Supreme Court revised the test in a 1992 case known as Regina v. Butler. The court accepted that obscenity must also include non-violent explicit sex if it is degrading or dehumanizing to the participants. But how can anyone assess what is degrading or dehumanizing unless you have context? Does it not require a psychologist leaning over the shoulder of the policeman or customs official when the material is been considered? The result is that the uncertainty around what is or is not obscene continues. The shoddy treatment of this bookstore and its customers has been very offensive. Regrettably, in this commentator's opinion, that abuse by Canada Customs has not been satisfactorily addressed by the Supreme Court.